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parcels of land formerly situated in Shoshone county, but now situated in Nez Perce county, state of Idaho, which lands are described in different groups, the first group aggregating 16,565.76 acres, a second group aggregating 2,560 acres, a third group containing 3,523.20 acres, also a fourth group embracing 22,583.45 acres. It is alleged that all of these lands, at the dates of the assessments complained of, were vacant and unoccupied. The plaintiff is the grantee of the Northern Pacific Railway Company, which, in turn, is the successor in interest of the Northern Pacific Railroad Company, and, it is averred, all of these lands were selected by the Northern Pacific Railway Company in lieu of lands relinquished by it to the United States, the first group having been selected in lieu of lands so relinquished pursuant to an act of Congress approved March 2, 1899 (30 Stat. p. 993, c. 377), establishing the Mt. Rainier National Park, and the second group having been selected pursuant to the provisions of the general act approved June 4, 1897 (30 Stat. 34, c. 2 [U. S. Comp. St. 1901, p. 1538]), under which the Priest River Forest Reserve was established, and the third group having been selected pursuant to the provisions of said act of June 4, 1897, under which the Lewis and Clark Forest Reserve was established, and the fourth group having been selected in part under the provisions of said act of June 4, 1897, and in part under said act of March 2, 1899. All of said lands, it is averred, were selected by the Northern Pacific Railway Company during the years 1900 and 1901, while the same were unappropriated public lands of the United States, by the filing of selection lists in the United States District Land Office at Lewiston, Idaho. It is alleged that at the time of the selection the lands described in the first group were unsurveyed. It does not appear from the bill whether the lands described in the other three groups were surveyed or unsurveyed at the time the selection lists were filed. The selection lists so filed were transmitted to the office of the Commissioner of the General Land Office, and, it is averred, the lands therein described remained the property of the United States and a part of the public domain until the approval of said selections by the Secretary of the Interior and until the issuance of patents therefor, it being the duty of the officers of the Interior Department, before such selections were approved, to determine whether the lands specified in said lists, as the bases for the lands so selected, were situated within the limits of the Mt. Rainier National Park, the Priest River Forest Reserve, and the Lewis and Clark Reserve, respectively, and whether the same had been duly and properly conveyed to the United States in accordance with the provisions of said acts of Congress and whether the title to said base lands was, at the time of the conveyance thereof to the United States, vested in the Northern Pacific Railway Company, and whether the lands so selected were subject to selection under the provisions of said acts.
It is further averred, relative to the said first group of lands, that no determination of said questions of fact and no approval of said selections were made by the officers of the Department of the Interior until the 7th day of June, 1905, and that patent therefor was issued on the 12th day of June, 1905. And, as to the second group, it is averred
that the said questions of fact were determined in favor of the selector and the selection was approved April 21, 1905, and patent issued May 5, 1905. And, as to the third group, it is averred that the selection was not approved until May 2, 1905, and patent issued May 20, 1905. Thereafter, on the 12th day of September, 1905, by warranty deed, the Northern Pacific Railway Company conveyed all of the lands embraced in said three groups to the plaintiff. As to the status of the title of the fourth group, it is alleged that none of the selections or selection lists have ever been approved by the officers of the Department of the Interior, nor has any patent ever been issued. It is averred that all the lands embraced in said group are "the exclusive property of the United States and a part of the public domain of the United States”; that, if the selections of said lands so made by the Northern Pacific Railway Company are hereafter approved and patents issue therefor to the Northern Pacific Railway Company, “then your orator expects to acquire title to the same from the said Northern Pacific Railway Company,” but it is averred that neither said railway company, nor the plaintiff, nor any other person, has any title, estate or interest, legal or equitable, in or to any of said lands.
After thus setting forth the history and status of the title to the various groups of land, the plaintiff proceeds to aver that in the year 1903 the officers of Shoshone county entered upon the assessment books of said county a description of all of said lands and assessed the same to the plaintiff, the taxes so assessed amounting to $7,882, and that all of said lands were valued and assessed and levied upon in one single parcel without division or apportionment. Thereafter, said taxes not having been paid and the same being delinquent, all of said lands were after advertisement offered for sale on July 12, 1904, in a single parcel, and were bid in by and struck off to the defendant, Shoshone county, for the sum of $8,607.45, and a tax certificate therefor was issued to the purchaser, and was made of public record in said county. Similar allegations are made relative to the assessment and sale of the same lands for the taxes of 1904. It is averred that the defendants claim and assert that no part of the land so sold can be redeemed from either of said sales, except upon the payment of the entire sum for which said lands were struck off to Shoshone county, together with interest, etc.
Thereupon follow a number of allegations relative to the interest claimed by Shoshone county and the interest claimed by Nez Perce county in said tax certificates, by reason of the segregation of the territory embracing these lands, from Shoshone county, and its annexation to Nez Perce county; also a number of allegations for the purpose of showing that the tax certificates, and the tax deeds which will follow in the course of time, will create a cloud upon the plaintiff's title to said lands. After service of subpoena, the defendants appeared and demurred to the bill, upon the ground that it did not state facts sufficient to entitle the complainant to the relief prayed for. This demurrer was on August 15, 1906, after argument, overruled by my predecessor, Hon. James H. Beatty. Thereafter the defendants answered, and to this answer the complainant filed a replication. The answer expressly admits substantially all of the allegations of the bill, excepting those relating to the dates of the approval of the various selections referred to in the bill, and the averments involving mixed questions of law and fact as to the assessability of the lands in question during the years 1903 and 1904. The defendants deny that the Northern Pacific Railway Company, by deed, transferred the lands embraced in the first three groups described in the complaint on the 12th day of September, 1905, and, upon the other hand, they allege that the Northern Pacific Railway Company, by warranty deed, conveyed to the plaintiff all of the lands embraced in the four groups on the 30th day of July, 1901, which deed, it is alleged, was recorded in the office of the county recorder of Shoshone county, on page 13 of Book 20 of Deeds. Thereafter, on April 25, 1907, a written stipulation, signed by counsel for the respective parties, was filed, wherein it is agreed, in substance, that the facts as alleged in the bill of complaint are true, excepting only the allegations as to the date the selections were approved and patents were directed to be issued, and as to the dates determination was made of the questions of fact upon which the selections were based. There is also attached to the stipulation a copy of the instrument referred to in the answer as a deed from the Northern Pacific Railway Company to the plaintiff, dated July 30, 1901, and which was recorded in the office of the county recorder of Shoshone county on August 12, 1901. This instrument, after reciting that the railway company had contracted to sell and convey to the plaintiff the lands therein described, states that, in compliance with said contract, the railway company “does grant, bargain, and convey" to the plaintiff certain lands in Shoshone county, which are particularly described, and which aggregate 45,000 acres, and which are, with slight discrepancy, the same lands described in the bill of complaint. The railway company therein covenants that it, the railway company, “has not made, done, executed, or suffered any act or thing whatsoever” whereby the premises described are or shall be imperiled, charged, or incumbered, and the railway company further covenants to warrant and defend the title to said premises, “except as against any taxes and assessments levied or assessed against said land during the year 1901 and the years subsequent thereto, which the said party of the second part hereby assumes to pay.” Thereafter, on May 24, 1907, by agreement of counsel for the respective parties, made in open court, an order was made that the cause be submitted on the pleadings, the stipulation referred to, divers depositions, and a large number of exhibits, most of which are transcripts of certain records and files of the United States Land Office at Lewiston, Idaho, and of the General Land Office at Washington. Practically all of this evidence relates to the history of the selection lists from the time they were filed until patents were issued, and to the official survey of the townships in which the lands in question are situated. There are also transcripts of the assessment books of the defendant county. All of the lands in question are situate in townships 38, 39, and 40 North, range 5 East, and townships 38, 39, and 40 North, range 6 East. The plats of these townships were certified by the Surveyor General of Idaho May 9, 1903, were accepted by the Commissioner of the General Land Office, January 15, 1904, and were filed in the local land office at Lewiston, Idaho, February 24, 1904. All of the selection lists covering the lands in question were filed prior to October 1, 1900, namely, at various dates in September, 1900. Thereafter, pursuant to the requirements of law and the regulations of the department, the railway company, in due time after said lands were surveyed and the plats thereof accepted and filed in the local land office at Lewiston, filed supplemental or amendatory lists, adjusting the original lists to the government surveys.
The record also discloses the fact that some protests were made or contests instituted and carried on against the claim of the railway company to certain of the lands selected; and also that examinations were made by examiners of the Interior Department for the purpose of determining whether or not the lands selected were vacant and unappropriated, and were, under the law, subject to approval and patent to the railway company, and whether or not the lands which the railway company offered to release could properly, under the law, be considered base lands, and whether or not the same were duly released by the proper parties in interest in accordance with law, and whether or not the lands selected were mineral in character, and other facts pertinent to the general question whether or not the railway company could of right select the lands described in the lists as lieu lands.
The exhibits, in much detail, set forth the various steps taken by the railway company and the officers of the Interior Department between the date of the filing of the original lists by the railway company and the date upon which patents finally issued, but, in my view, it is unnecessary particularly to set forth these details for the purpose of elucidating and applying the principles of law by which the rights of the parties hereto must be adjudged. The lands embraced in the first group described in the complaint, amounting to 16,565.76 acres, were, as heretofore stated, selected under the provisions of the act of March 2, 1899; also a considerable portion of the lands described in the fourth group were selected under the provisions of this act. This act provides that upon the execution and filing with the Secretary of the Interior by the Northern Pacific Railway Company of a proper deed releasing and conveying to the United States the lands which it rightfully claimed in the Mt. Rainier Forest Reserve, as created by said act, also in the Pacific Forest Reserve, whether the same were surveyed or unsurveyed, and which were situated opposite the railway company's constructed road, the railway company was authorized to select an equal quantity of nonmineral public lands to which no adverse right or claim had attached or had been initiated at the time of making the selection, such land lying within any state through which the railroad of said railroad company extended. The act further provides that in case the tract so selected should, at the time of the selection, be unsurveyed, the railroad company should, within three months after the lands were surveyed and the plats filed, file a new selection, describing the lands selected in accordance with the surveys. It is further provided that new descriptions might be given so as to make the selections conform to the surveys. It is further provided:
"That upon the filing by the said railroad company at the local land office of the land district in which any tract of land selected is situated and the payment of the fees prescribed by law in analogous cases, and the approval of the Secretary of the Interior, he shall cause to be executed in due form of law, and delivered to said company, a patent of the United States conveying to it the lands so selected."
With regard to the first group of lands and selections under the provisions of this act, the proofs show a report made by examiners of the department May 3, 1905, upon certain questions, and on May 19, 1905, another examiner's report, to the effect that the tracts selected were not returned as mineral, and were not in conflict with any mining claim of_record. And thereafter the Acting Commissioner of the General Land Office recommended to the Secretary of the Interior that the selections be approved, and that a patent be issued to the Northern Pacific Railway Company as the successor in interest to the Northern Pacific Railroad Company. On June 7, 1905, the selection was approved by the Secretary of the Interior, and patent issued June 12, 1905. Similar proceedings, as the proof shows, were taken relative to the lands embraced in the fourth group described in the complaint and selected under the provisions of this act; all the examinations and reports of the examiners being made in 1906, and the approvals by the Secretary of the Interior having been made and endorsed June 4, June 28, and August 28, 1906.
The other lands described in the complaint, namely, the second and third groups and a part of the fourth group, were selected under the provisions of the general act of June 4, 1897. The lists conveying these selections are No. 3,214, filed in the local land office September 28, 1900, for 9,065.72 acres, and No. 3,215, filed September 25, 1900, for 2,560 acres, and No. 3,216, filed the same day for 3,523.20 acres. As already indicated, all of the townships in which these lands are situated were at the time of the filing of these lists unsurveyed.
The rules of the department in force both at the time of tendering these lists, and at the time the plats of these townships were filed in the local land office, after the surveys had been accepted and approved, provided that the selections of unsurveyed lands must be made to conform to the survey within 30 days after notice from the local land office to the party making the selection of the receipt at the local land office of the approved plats, and, further, that no selections upon unsurveyed lands would be passed to patent until after four months following the filing of the plats in the local land office, in order that any person claiming an adverse right might thus have ample opportunity to file protest and otherwise to assert his claim to any of the land included in the selection lists. Complying with these rules, the railway company on March 21, 1904, filed in the local land office at Lewiston supplemental lists, adjusting lists 3,214, 3,215, 3,216 to the official surveys. The filing jackets in the General Land Office, covering these three selections, bear the following, among other indorsements: On jacket No. 3,214: “Approved by Commissioner June 12, 1903; approved for patent December 6, 1905.” On jacket No. 3,215; “Approved by Commissioner October 16, 1902; approved for patent April 21, 1905.” And on filing jacket No. 3,216: “Approved by Commissioner October 16, 1902; approved for patent May 2, 1905. The patent covering list No. 3,214 was issued December 21, 1905,